Maybe I’m misunderstanding your point, but I’m sure you’re aware a law doesn’t change the Constitution. Congress can pass a law saying “cruel and/or unusual” punishment is banned but it can also repeal that law at any time. So if Congress passed a law legalizing all convicted terrorists be tortured for information, would it pass a constructionist USSC review?
An amendment does.
The Bill of Rights pertains to citizens of the US, so if we were talking about foreign terrorists probably there is currently no constitution-level anything forbidding torture. However, I would assume that there are other, lesser, Federal laws that have been passed in times past on which SCOTUS could base their decision. If the public felt that a federal law was too flimsy, they could have an amendment added to protect the rights of non-citizens. And quite possibly, such a thing should be done.
For home-grown terrorists, they would be protected from torture by “due process” before any trial, and then again by “no cruel and unusual punishment” after sentenced.
Which doesn’t really answer anything.
We could amend the constitution out the ass until it described a communist dictatorship government wherein all decisions were made by jumping on pogo-sticks while snorting Jello and all citizens have to have blue armpit hair. The only difference between amendments and ordinary federal law is that amendments are harder to get passed and to revoke–and that there is no higher set of laws than them. But there isn’t anything which can’t, as I understand it, be revoked including everything in the Bill of Rights and the constitution.
And a textual reading protects that more than a non-textual. If a judge doesn’t like your freedom, he can interpret the text to restrict it as he will with a non-textual approach. A textual one says, if it’s not covered, it’s not covered. And if it’s not covered, the default is going to be for the freedom to do it.
Outside of the “insist” bit, it is there job to verify that a law has a solid justification in law, and that does not violate rights guaranteed to us by law. If it does not meet that standard, the law is discontinued and the status of whatever the law addressed reverts back to the default of freedom.
But it still is governed (as opposed to anarchy.) Laws restrict and guarantee rights because someone somewhere felt that a particular right needed to be particularly protected or particularly squashed, took it to congress, and got it passed. Certainly this is locking down what is and what isn’t in the default free-to-do category–but if you have two groups with alternate opinions on what can “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity”, then somewhere, someone has to make the decision. And if it’s come to that, the group to make the decision is the representatives of the people, not the president-appointed judges of a single courthouse.
Fine then, let’s ditch the bill of rights and all of the amendments pertaining to the rights of the people. I never liked that one guaranteeing us freedom of speach, anyhow.
And the police.
Perhaps he only brings up the right to privacy because it is not currently guaranteed beyond saying that government agents need a search warrant to invade it. Nothing else is guaranteed under the current wording.
If you truly care about your privacy, why would you rather stick with the current IVth amendment and have it stretched mercilessly to fit your colloquial meaning of “privacy” even though that amendment never mentions the word, and is only talking about police limits in pursuing an investigation. Relying on the current wording to protect any of the rights tied up in privacy like medical records, drug use, abortion, etc. is dangerous. It’s not Scalia’s fault that, that is true.
But it is Scalia’s fault, if that’s the right word, that he claims that the government is permitted to regulate private behavior, such as an early abortion, because that is not specifically barred by the Constitution.
Well, the police enforce the law and the courts in the end determine what the law is.
Yes, there can be restrictive judges but their rulings are subject to a lot of reviews. I think the danger from restrictive judges is much less than from a restrictive executive. Judges are a sort of collective committee and congress is a real committee. The executive department is in essence one person. It does seem to me that the greatest human rights outrages have come from the ill will of one person more often than from the collective will of a committee.
Very very true. The economy of the time depended on slavery in may ways, right or wrong. The Founders who wrote so many words about freedom also owned slaves. If judges were to rule based only on their own moral compass or “vision for the world”, we would be only one step away from “royal decree”. My main point was that there are provisions to protect the minority from the tyranny of the majority “hardwired” into the constitution.
Then why not follow his suggestion and get the Constitution to specifically bar it?
Correct. That is the job of Congress, through the amendment process. Scalia, like all other judges, is bound by the law as written. His position, which I am now coming to understand, is that he, as a Judge, is extremely limited. He can only speak to what the law says and what he understands it to mean. He can say what he thinks of it, and may say it is poorly written, or vague, or sucks eggs (as written), but he can not MAKE OR REVOKE the law. He would be overstepping his bounds as a judge. He is right.
David Simmons:
I don’t think I agree with this. The only “solid justification” a law needs is the majority vote of Congress and the signature of the President. The only role the court has here is making sure the law doesn’t violate a pre-existing Congressional imperative - i.e., the Constitution.
I once heard someone say the most important words in the Bill of Rights are “Congress shall make no law…” I agree - it puts into perspective the role of the Judiciary. It’s their job to make sure that any law Congress (or a state legislature, in most cases) makes is not prohibited to them to have made. Beyond that, the Judiciary is overstepping its bounds.
There is integrity in the position that if the Constitution doesn’t say it, then you can change it.
However, looking at things realistically, constitutional amendment is not a realistic option for most cases of injustice.
From my point of view, we have certain inalienable rights and most of them have to do with making personal decisions about our lives, among them, sexual orientation, sexual practices, contraception, and abortion. Many of these things are not protected explicitly by the Constitution and it would be impossible to get them into the Constitution.
Looking at the electorate today, and, perhaps at almost any time in American history, it seems doubtful that you could really get the supermajorities necessary to pass something as simple as the First Amendment, if it hadn’t already been part of the Constitution.
And, from my point of view, most of the rights I consider critical to personal dignity have been won in the face of the opposition of the majority of the public. Take a look at the post-Civil War amendments. I’m pretty sure that the only reason they passed were because of the extraordinary circumstances of a backlash against the recent bloodbath and the military occupation of the South. I don’t think they would have been adopted in fair and straightforward circumstances.
I’m left between Scylla and Charibdis here – either I respect the process and the textual integrity of law, or we get the kind of rights we should have. We can’t have both.
And that reminds me that it is rather questionable whether you could fairly label the process that resulted in the adoption of the Constitution as truly democratic in the first place. It was a neat trick that got it in.
This discussion has gotten off track. The Framers were very careful to set aside specific rights that cannot be taken away by any law: speech, religion, assembly, press, etc. One thing that all of the guaranteed rights have in common is that a person making use of those freedoms will not interfere with the freedoms of others. Thus, you are allowed to speak, but not yell “Fire!” in a crowded theater. Based on the commonalities of these guaranteed rights, we should have no problems adding to the list. As great as these people were, you can’t treat them as omniscient beings. They had no idea what the future would bring. Scalia and his goons are anti-freedom and are basically saying, waving the Constitution, “Nya nya , this doesn’t say that you can do that, so you can’t. Ha-ha.” It’s plainly obvious what the real reason is for being an originalist. They know that there’s no way that a country that is 80% straight would ever completely approve of gay marriage. So no nationwide law could ever be passed that treats all marriages equally. It is the job of Court to understand the intent of the Constitution.
So originalists adopted their philosophy only for the purpose of defeating same-sex marriage?
You are completely mistaken. You are assuming that we operate as you do: figure out what the desired result is, and then adopt a position that permits you to reach it.
That’s not how it works.
As a textualist, I believe as I do because I am serious about our notion of self-governance – that laws should be MADE by the legislature.
You say judges should make new law, following “the intent” of the Constitution.
But what do you say to a judge who says, “It’s clear to me the intent of the Fourteenth Amendment is to protect the rights of all people, born and unborn. Therefore, abortion is prohibited.”
You may argue with with him about his getting the intent wrong – certainly I think he’s wrong about such a conclusion, and I’m an ardent pro-lifer. But you’ve ceded to him the ability to enforce his view of the intent on us all. He doesn’t need to point to words to buttress his point.
You’re happy when the courts enforce the intent of the Constitution… but only when you happen to agree with their vision of the intent.
I think we should rely on judges to simply enforce the WORDS of the Constitution, and elect leaders that will write the words we want. Our federal judges serve for life… if you get a guy in there who turns out to view “intent” differently than you do, you can’t get rid of him. But if we get a politician in there, we can kick him out if he doesn’t do it the way we want.
The most valuable thing about this country is that we, the people, are sovereign. We weaken, or eliminate, that power if we hand it over to unelected, life-time tenured judges.
But this is to some extent a self-fulfilling profecy: With the courts so willing to stretch the meaning of the constitution, there isn’t much need to go to the legislature and push to amend it. Why convince all those legislators when you only need to convince 5 Justices.
Besides, a case can be made that the Court’s landmark decisions only came about when the country as a whole was ready for them anyway. School segregation was tolerated by the court for years and it wasn’t until the public started to get swayed that the court acted. Maybe not the folks in the South so much, but certainly the rest of the country. SSM is going thru a silimar process right now. Judicial activism may help jump-start that process in some circumstances, but I don’t buy the argument that courts are the only practical way to expand beyond the plain text of the constitution.
It also seems that you have a problem with the democratic process itself. At some point you have to acknowledge the right of the people to govern themselves (ourselves) even if you disagree with what the people want. One reason folks like Roberts or even Scalia are popular (or at least that their opinios are popular) is that the electorate as a whole thinks the court has often overstepped its bounds.
No. I accuse them of adopting this philosophy for the simple reason that it most suits their desired result. It simply doesn’t make sense that specific rights denoted and agreed upon 200+ years ago can’t be expanded to suit the current day. I know that laws can be passed, but laws could have been passed 200+ years ago as well. There was a reason to point out that certain laws cannot be passed: ones that restrict certain freedoms.
I think that we both are striving for a desired result. It’s just that your result is based on dogma that, deep down inside you, supercedes the point of the Constitution.
I think it does.
What about laws that take away, for example, the right to bear arms?
This is why we have 9 Supreme Court justices. Hopefully, 5 of them won’t let dogma get in the way.
My happiness has nothing to do with it. Interestingly, I’m also a pro-lifer. To me, the freedom to have an abortion violates the baby’s right to life. And the right to life clearly supercede’s someone else’s right to end another’s life. But if 5 justices disagree with me, so be it.
And I say that the words were written along time ago and would be quite different if written today.
Irrelevant.
Again, we have 9 of them. I’m still trying to figure out the logic behind the Scalias and Thomases.
Understood.
We have a government of delegated power that is limited to that specifically granted by the people in the Constitution. Nowhere in the constitution is the power to invade my privacy and freedom of action granted to the Congress without a specific just cause. For example my freedom of speech is limited in that I am giving aid to the enemy if I announce in public during wartime that a troopship is due to sail from San Francisco at 5:00 PM next Tuesday. There is no need to bar Congress from restricting early abortions because that power was not granted to it in the first place. In order to do so I think the Congress would have to show that not barring such acts would prejudice national security, the general welfare, domestic tranquility and all such stuff.
Let’s take this little bit and work on it, because to be honest you’re line of reasoning is just all over the place-- jumping from issue to issue and point to point. I don’t mean that as a criticism, per se, but it appears that your passion is getting in the way of arguing this issue in a calm, reasoned way. Let’s take one issue and a time and see where the problems are.
First, let’s drop the originalist stuff. Scalia is not an origionalist, and does not consider the original intent of the founders to be key. He’s a textualist and interprets the text as it is written. He will include intent insofar as it tells us the meaning of the words (which do change over time), but only then. For example, most of us don’t know what a “well regulated militia” is. I suspect that that term meant something else in the past, but has generally lost that meaning today.
In order to justify your accusaition, you’d have to prove that they rule against the plain text of the consitution in support of their political views. Do you think Scalia favors flag burning, for example? If not, why did he rule that we do in fact have the right to burn a flag? Back your statements up with facts, otherwise we have no reason to believe them.
As for laws that restrict freedom, that’s just too vague. “Freedom” in an absolute sense is simply not covered in the constution, and few would argue that it should be. If the constiution enshrined “freedom”, then pretty much every law would be challengeble. Pure Libertarians might like that situation, but I don’t think you’re a Pure Libertarian, are you?
Almost every law restricts freedom in some way. Yes, we’ve carved out certain areas where “Congress shall make no law…” and that’s exactly what textulalists (like Scalia) will attempt to preserve. You also have to weigh the issue of federalism-- the States retain authority (per the 10th amendment) that the federal goverment simply doesn’t have. That has been erroded over time, but should we just ignore that part of the constution because it gets in the way of “progress”?
Well, but Congress never really restricted early abortions. The states did, and most of the controversial issues that came up from the Warren Court onward, like segregation, the death penalty, birth control, sodomy laws, gay marriage, etc. were state laws, not federal ones.
The rights that the people retain relative to the federal government were extended to the people vs. the state governments long ago.
Absolutely NOT. The definition of “progress” changes with the wind. If we simply ignore any part of the Constitution, then it follows that any part of it, or all of it could be ignored. That path leads to despotism.
Sorry, John Mace, I’m using different examples because I don’t have an agenda here. I’ll ask you a question. What was the Framers’ purpose in denoting a list of rights that the government cannot take away from the people? You said that the lawmaking provisions within the Constitution allow us to change laws. And yet, we can’t change certain laws. Why can’t we? I’d say there are important reasons for this. And the same reasons apply to certain restricted freedoms today. Unfortunately, I have to catch a train now, and my internet at home is down. Unless it comes up, I won’t be able to respond until Monday.
I’m a bit confused, because you seem to be mixing statutory law with constitutional provisions. There is nothing* in the constitution that can’t be changed by a supermajority, but most laws require only a majority vote in Congress. So, the rights granted in the Constitution most certainly can be taken away if 2/3 of Congress and 3/4 of the states vote for it. What prevents that from happening is that government could lose the consent of the people-- ie, if the government succeded in repealing some or all of the Bill of Rights, we’d likely have armed insurrection.
If you mean the why did the framers include theBill of Rights in the constituion, well we have a pretty good idea why per that cite). But your question confuses me. You seem to take as your main point of argument that we should not be constrained by what the framers meant (ie, your disdain for “originalism”) and yet you use exactly that type of argument (originalist) to defend your position. Why do you care what the hell the framers meant if we shouldn’t be contrained by their thoughts?
*except, it would appear, that one part where it says that no state can be granted more Senators than any other state.